Dumping occurs when a foreign producer or exporter sells a product in the United States at a price that is below “normal value.” Normal value may be the price at which the foreign producer sells the merchandise in its own domestic market or a third-country market, or may be a constructed value based on its production costs plus an amount for profit. A separate surrogate-value based methodology is used to establish normal values for non-market economies. This entails valuing the non-market economy producer’s factors of production using prices or costs from one or more surrogate market economy countries considered to be (1) at a level of economic development comparable to that of the non-market economy country of the producer and (2) a significant producer of comparable merchandise.
Governments subsidize enterprises or industries when they provide financial assistance to benefit the production, or exportation of goods through, e.g., direct cash payments, credits against taxes, and loans at terms that do not reflect market conditions. To be countervailable a subsidy must involve a government financial contribution that confers a benefit that is specific to a certain enterprise, industry or region in that country or that is contingent upon export or the use of domestic goods over imported goods in production.
Antidumping and countervailing duties are intended to offset the value of dumping and/or subsidization, thereby leveling the playing field for domestic industries injured by such unfairly traded imports.
The domestic industry files a petition with both Commerce and the ITC. Commerce reviews the petition for sufficiency and if it determines that the petition contains the relevant information, it will initiate an investigation into whether the goods subject to the petition are being sold at less than fair value or benefiting from unfair subsidization. Once an investigation has been initiated, Commerce investigates whether a producer or exporter is dumping and/or receiving unfair subsidies, while the ITC investigates whether the domestic industry is injured or there is a threat of injury because of the potentially dumped or subsidized imports.
The office of Enforcement and Compliance within the International Trade Administration (ITA) at Commerce is responsible for enforcing the U.S. AD/CVD laws to protect United States’ businesses from unfair competition resulting from unfair pricing by foreign companies and unfair government subsidies to foreign companies. If, during an investigation, Commerce preliminarily finds that imported merchandise was is being sold in the United States at a dumped or unfairly subsidized price, the agency will direct CBP to suspend liquidation of incoming entries (and potentially certain past entries within a specific time period) and begin collecting AD/CVD on those entries. If Commerce makes a final determination that imports are dumped and/or subsidized, and the ITC makes a final determination that a U.S. industry is materially injured or threatened with material injury, Commerce will issue an AD/CVD order continuing that suspension of liquidation, and updating the rates of duty-collection, if needed, to reflect the agency’s final calculations.
To determine whether the domestic industry is materially injured or threatened with material injury as a result of the dumped or unfairly subsidized imports. The ITC considers all relevant economic factors, including the domestic industry's output, sales, market share, employment, and profits. For further information on the ITC’s injury investigation, visit the ITC’s website at www.usitc.gov
Once an AD/CVD order is in place, Commerce conducts reviews of merchandise imported into the United States to determine if imports are being sold at less than fair value (i.e., dumped) or benefiting from unfair subsidization. If Commerce continues to find that imports are being dumped or unfairly subsidized, it directs CBP to assess AD/CVD (as appropriate) in the amount calculated by Commerce. For further information regarding the conduct of Commerce’s investigations and reviews, visit Commerce’s website at https://www.trade.gov.
CBP is responsible for enforcing the AD/CVD laws on imported goods. CBP collects AD/CVD cash deposits, administers AD/CVD entries, assesses and collects final AD/CVD, and enforces AD/CVD on imports that evade AD/CVD orders. CBP utilizes significant national assets from across the agency to enforce AD/CVD laws. CBP also collaborates with U.S. Immigration and Customs Enforcement to substantiate and act upon allegations of duty evasion and to support enforcement actions. For further information on CBP’s role in AD/CVD enforcement, see www.cbp.gov/trade/priority-issues/adcvd.
Suspension of liquidation of entries and collection of AD/CVD cash deposits (provisional measures) begin at the first affirmative Commerce determination in the AD/CVD investigation. This is usually at the time of Commerce’s preliminary determination. At that time, Commerce will instruct CBP to suspend liquidation and collect cash deposits (i.e., provisional measures) beginning on the date its determination is published in the Federal Register. If, however, Commerce has found that critical circumstances exist, it will instruct CBP to suspend liquidation and collect cash deposits beginning 90 days prior to the date its determination is published in the Federal Register.
Provisional measures expire (i.e., duties will no longer be collected by CBP) after they have been in place for 120 days. For AD cases, this period may be extended up to 180 days. Suspension of liquidation and duty collection by CBP will resume if Commerce publishes an AD/CVD order.
Critical circumstances arise when Commerce determines that exporters are flooding the U.S. market with imports of a product subject to an ongoing AD/CVD investigation. A finding of critical circumstances is an important tool to offset possible import surges during the period of an initial AD/CVD investigation.
For example, consider the situation in which an AD/CVD investigation is ongoing, and an importer enters goods subject to the investigation in the 90 days before liquidation is suspended and AD/CVDs are imposed. A critical circumstances determination would retroactively subject these imports to AD/CVD cash deposits.
Once Commerce makes a determination that critical circumstances exist, it has the statutory authority to order the retroactive suspension of liquidation and posting of cash deposit for entries made before the issuance of a preliminary and/or final AD/CVD determination. Commerce’s authority to suspend entries retroactively for AD/CVD is limited to those entries made on or after the later of: (1) 90 days before the effective date the suspension of liquidation was first ordered, or (2) the date of the Federal Register notice initiating the investigation. CBP will suspend liquidation and collect cash deposits on the relevant entries as directed by Commerce’s instructions.
Commerce issues a preliminary determination in AD/CVD investigations and reviews to allow parties involved in the proceeding an opportunity to review and comment on its AD/CVD determination, including the calculated margin of dumping or rate of subsidization. Commerce considers those comments and determines whether changes to its preliminary determination are appropriate. Commerce will then issue a final determination addressing parties’ comments and finalizing its determination.
If, in an investigation, Commerce issues an affirmative preliminary determination, it will instruct CBP to begin suspending entries and collecting duties (i.e., provisional measures) at the preliminarily-determined rate of dumping or subsidization.
If, in an investigation, Commerce issues an affirmative final determination, then the ITC will vote on whether the U.S. domestic industry is injured or threatened by material injury due to imports of the dumped or unfairly subsidized product. If both the Commerce and ITC final determinations are affirmative, Commerce will issue an AD or CVD Order, as appropriate, and will direct CBP to continue or resume (if provisional measures expired) suspension of liquidation and collection of cash deposits at the rate(s) determined in Commerce’s final determination.
After an AD/CVD order is in place, Commerce will conduct annual administrative reviews of an AD/CVD order if requested by an interested party. However, Commerce does not instruct CBP to alter AD/CVD collection rates pursuant to preliminary determinations in such reviews. Instead, following its final determinations, Commerce will instruct CBP to assess duties on the reviewed entries, and begin collecting cash deposits on future entries in the amount of the final calculated AD/CVD rate.
Commerce’s ITA’s Enforcement and Compliance calculates the AD/CVD rates and establishes the scope of AD/CVD orders. CBP enforces these decisions and collects the AD/CVD assessed on the imported goods.
You need to review the scope of AD/CVD orders to determine whether the merchandise falls under the scope of an order. The scope of AD/CVD orders can be found in several places:
Written instructions from Commerce to CBP, available in CBP’s Automated Commercial Environment (ACE) (for importers and customs brokers with ACE accounts), and on the internet via the AD/CVD Search at https://aceservices.cbp.dhs.gov/adcvdweb
HTS classifications are listed in the scope of AD/CVD orders for convenience in assisting importers in determining whether a product may be subject to an AD/CVD order. However, the written description of the scope of the order is dispositive, not the HTS classification. Accordingly, the inclusion or exclusion of an HTS classification in the scope of an AD/CVD order does not determine whether a product falls under the scope of an AD/CVD order.
ACE contains comprehensive case information on every AD/CVD case, including company-specific case numbers and AD/CVD cash deposit rates. See also, Question 15 below. Federal Register notices issued by Commerce list the case numbers and AD/CVD cash deposit rates. In addition, the Commerce instructions to CBP list the case numbers and AD/CVD cash deposit rates (see ACE and/or the AD/CVD Search at https://aceservices.cbp.dhs.gov/adcvdweb). These instructions are searchable and span the years 1992 to present. When looking up a specific 10-digit case number in ACE, it is important to identify the status of that case number. For example, case numbers that have been inactivated do not necessarily mean that the company(ies) associated with that case number are no longer subject to AD/CVD. The list of 10-digit (i.e., company case) status definitions is available at: www.cbp.gov/document/guidance/ace-adcvd-company-case-status-definitions.
Commerce associates cases in ACE only at the principal case level, which is the 7-digit case number. Therefore, ACE queries and reports to determine whether both AD and CVD are due on a particular imported good should be run at the 7-digit (i.e., case level), not at the 10-digit (i.e., company-level) case number. Due to the fact that the AD and CVD proceedings are conducted separately, company specific information may differ between the CVD and AD cases.
The AD/CVD paid at the time of entry are cash deposits of estimated AD/CVD duties. The final amount of duties owed is not determined until Commerce conducts an administrative review to establish the final AD/CVD rates on past entries. In other words, the final duties are assessed retrospectively on prior entries. The final AD/CVD amount may increase, decrease, or remain unchanged from the AD/CVD cash deposit paid at the time of entry. After Commerce sends instructions to CBP on the final AD/CVD rate for the entry, CBP will assess this final duty. CBP will issue a bill for any increase in duty plus interest or refund any overpayment plus interest as a result of a decrease of a duty. Interest is not applicable to entries made during the provisional measures period in the original AD/CVD investigation. On average, this entire process, from the date of importation, takes approximately three years.
You may request an administrative review of your imports from Commerce to determine the final AD/CVD duty liability. Commerce publishes a notice of opportunity to request a review each month in the Federal Register. Requests for administrative review must be submitted to Commerce during the anniversary month (i.e., the month of the particular AD or CVD order) to cover a review of entries from the prior anniversary month through the month prior to the current anniversary. For example, if the order was issued in February 2012, the notice of opportunity to request a review of entries covered by that order is published at the beginning of February each year. To request a review of entries from February 2015 through January 2016, the request must be submitted to Commerce during the month of February 2016.
Commerce instructs CBP on the final AD/CVD rates, and CBP will assess final duties based on these instructions.
You may request a ruling from Commerce regarding whether your product falls within the scope of an AD/CVD order. For more information on applying for a scope ruling, see https://enforcement.trade.gov/scope/Request-Scope-Ruling.html. Further, if you believe CBP misapplied the scope of the order as written, you may file a protest with CBP within 180 days after the entry has liquidated.
Yes, if CBP determines that imports are subject to the scope of an AD/CVD order, importers are required to deposit AD/CVD duties while a scope determination is pending. If Commerce rules that a product is not covered by the scope of an AD/CVD order, Commerce will normally instruct CBP to refund the AD/CVD cash deposits, and the importer will receive a refund of the deposit(s).
With regard to refunds of AD/CVD duties, the statute and regulations clearly applicable law prohibits “any remission, abatement refund or drawback of duties”… See 19 U.S.C. § 1558, and 19 § CFR 191.3(b)(3). Once the merchandise has been released from CBP custody, the importer is not entitled to a refund of AD/CVD duties, except for refunds due to overpayment of a duty, or as a result of a subsequent decrease in the duty rate resulting from an administrative review of that AD/CVD order at Commerce covering, as appropriate, the exporter or producer of the merchandise.
Commerce’s regulations require that, prior to liquidation and the assessment of antidumping duties (and countervailing duties if there is a CVD order on the same merchandise subject to an AD order), the importer is required to file a certificate advising CBP whether it has entered into an agreement or otherwise has received reimbursement of such duties. If an importer fails to provide a statement of reimbursement prior to liquidation, CBP will presume reimbursement and double the duties.
Importers may also file their non-reimbursement statements through ACE. Non- reimbursement statements (in electronic format) fulfill the same requirements as reimbursement certificates. See 19 CRF 351.402.
Yes. There are several documents available from CBP, Commerce, and the ITC.
CBP’s website at www.cbp.gov contains several general publications on importing, including “Importing into the United States.” Click on “Trade,” and then “Basic Importing and Exporting.”
The website of Commerce’s International Trade Administration, legacy.trade.gov/enforcement, contains links to Federal Register notices of AD/CVD decisions, a list of products currently subject to AD/CVD orders, reference materials and highlights and news of recent decisions and initiations.
Enforcement and Compliance, the agency at Commerce that administers the AD/CVD statutes maintains a call center for the public. The telephone number is 202-482-0984.
To determine the proper AD/CVD case number and applicable cash deposit rate, you must first identify the exporter and manufacturer of the goods. Rates may be assigned to an exporter, an exporter/manufacturer combination, or a manufacturer. If the exporter has its own rate, use that rate. If the exporter does not have its own rate, determine if the manufacturer has its own rate. Be cognizant that if an exporter/manufacturer combination rate exists, the transaction must have the exporter and manufacturer combination present in order to qualify for the rate. After exhausting all of the above, there is no specific cash deposit rate assigned to the exporter, manufacturer or exporter/manufacturer combination, then the all-others or country-wide rate applies.
Additionally, if certain producer/exporter combinations are excluded from an AD/CVD order, the exclusions for certain producer/exporter combinations are applicable only to those producers/exporters in that combination. These exclusions are not applicable to resellers, even if the resold merchandise was sourced from the excluded producer/exporter combination. Accordingly, merchandise from an excluded producer/exporter combination sold through a reseller must be entered under the case number assigned to the reseller, or, if the reseller does not have its own case number, then at the “all others” or “country-wide” 000 case number.
AD/CVD cash deposit rates are listed in written instructions from Commerce to CBP, available in CBP’s Automated Commercial Environment (ACE) (for importers and customs brokers with ACE accounts), and on the internet via the AD/CVD Search at https://aceservices.cbp.dhs.gov/adcvdweb.
If the 10-digit case number has a case status of “Inactive – Company Deactivated,” the order likely still applies to this company, but this case number does not. Commerce typically applies “Inactive – Company Deactivated” when there has been a change in status for the company. Note, however, that a “company deactivated” status does not mean that the company is not subject to the AD/CVD order; rather, it means that this particular case number is no longer active for the company and merchandise can no longer be entered under this 10-digit case number.
The appropriate 10-digit case number for the company will be identified in the AD/CVD cash deposit instructions. If the company is given a different 10-digit company number, that will be noted in the ACE AD/CVD case reference file. Otherwise if the company is still subject to the order but does not have its own case number, its entries should be made under the “all others” or “country-wide” “000” case number. AD/CVD must be reported at the time of entry using the case number that replaced the deactivated case number for that company.
Yes, you still need to file a type 03 entry and report the required antidumping or countervailing case information when the cash deposit rate is zero percent. A zero percent cash deposit rate for an active case number is not an indicator that the merchandise is not subject to the respective antidumping or countervailing duty order. Rather it means that the last calculated cash deposit rate for that company was zero, and AD/CVD should be reported at the time of entry. Should a higher rate be determined at the end of an administrative review, the importer will receive a bill for the difference between its zero cash deposit and the final margin, plus interest.
You should also confirm whether the import is also subject to duties pursuant to a companion AD or CVD order on the same merchandise, and if so, submit the required amount of duties and report the required duty case information with the entry summary.
It is important to note that an HTS code is only provided for convenience since the narrative description of the scope of an AD/CVD case is dispositive and the description and nature of the goods are what determine if the HTS code is within the scope of an AD/CVD case. That said, customs brokers have the capability to query an HTS code in their ABI Software to determine an applicable AD/CVD Case. However, some AD/CVD cases do not always provide the HTS at the 10-digit level. As a best practice, you should always query an HTS code at the 8- and 10-digit level to determine if an AD/CVD Case applies, but also review the description and nature of the goods to determine if they fall within the scope of any AD/CVD Case. See the example below.